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Immigration: High Court Ruling

Volume 723: debated on Monday 20 December 2010


My Lords, with the leave of the House I would like to repeat a Statement made earlier today in another place by my friend the Minister of State for Immigration. The Statement is as follows.

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

The interim limit was given effect through changes to the Immigration Rules which were laid before Parliament and on which an oral Statement was made. On Friday, we received the judgment that the changes announced provide insufficient legal basis for the operation of the interim limit.

The judgment was based on a technical procedural point, known as Pankina grounds. The court decided that this meant more detail about the manner in which the limit is set, including its level, should have been included in the Immigration Rules changes laid before Parliament.

I would like to make it clear that the judgment of the court was concerned solely with the technicalities of how the interim limits were introduced. It was in no way critical of, or prejudicial to, the Government’s policy of applying a limit to economic migration to the United Kingdom, either permanently or on an interim basis.

The policy objective of a limit in migration has not been called into question and I am now considering what steps are required to reapply an interim limit consistent with the findings of the court.

Tomorrow I will be laying changes to the Immigration Rules which will set out the details the court required. This will enable us to reinstate the interim limits on a clear legal basis. The House will be interested to know that I will also be laying changes to the rules tomorrow to close applications under the tier 1 general route from outside the United Kingdom, as the original level specified on this tier has been reached. I can reassure the House that the policy of using these limits as part of our overall policy of reducing net migration is unchanged. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I am grateful to the noble Baroness for repeating the urgent question in the other place as a Statement.

Migration has made, and continues to make, a significant contribution to our country, but it is also essential that it is properly controlled for reasons of both economic well-being and social cohesion. Over the past few years, the previous Government put in transitional controls on EU migration; a suspension of unskilled work permits; a tough but flexible points system to manage skilled migration; tighter regulation of overseas students, leading to the closure of 140 bogus colleges; and new citizenship requirements for those seeking settlement.

At the general election, the leader of the Conservative Party proposed to go further in two key respects. First, he proposed a new target to reduce net migration to tens of thousands by 2015. To meet that target he pledged a cap on immigration, which he said would be tougher than the points system. Since then, the Government have been in wholesale retreat.

The Home Affairs Committee and the Migration Advisory Committee have highlighted that the cap not only excludes EU migration but covers only 20 per cent of non-EU migration. The CBI, Chambers of Commerce, universities, UK and foreign companies have highlighted the damage the Government’s proposals would have meant for business investment and job creation.

As a result, we have the retreat confirmed by the Home Secretary on 23 November. We have also learnt of the funding cuts in the noble Baroness’s department, leading to the cutting of the number of border officers and staff by nearly a quarter, raising serious questions about the security of our borders and whether the Government’s policy can actually be implemented.

We come to the way in which the Home Secretary imposed the cap. On 28 June, the Home Secretary came to the other place to announce, without consultation, an immediate and temporary cap on non-EU migration. Details of this cap were then posted on the Home Office website, but not presented to Parliament. On Friday, the High Court ruled that the actions of the Home Secretary were in fact illegal. Lord Justice Sullivan said,

“There can be no doubt that she”—

the Home Secretary—

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

As a result, the Government’s much heralded cap does not in fact exist. As Lord Justice Sullivan said,

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

In the light of this chaotic situation, on the consequences of the error, what is the status of those who applied under the illegal cap but were rejected? Will their applications now be granted? Can the Minister tell the House how many more migrants she now expects to enter the UK, while the cap is out of action? And in this light, is it still the target of this Government to cut net migration to tens of thousands by 2015, as the Prime Minister pledged before the election? Or is this mistake one reason why the Home Secretary is now trying to water down this target to just an aim?

Secondly, how did we get into this mess in the first place? Did Ministers ask for and receive legal advice before the summer about the legality of the temporary cap and the rushed way they were introducing it? Can she confirm that, in fact, Ministers were warned by officials and lawyers that there was a real risk of legal challenge if Parliament were bypassed in this way? Will the Minister agree to lay before Parliament all the legal advice on which the decision to proceed was based in order to dispel the impression that they have acted in a reckless and chaotic manner and to show that Home Office Ministers have nothing to hide in this regard?

I am extremely glad to hear that noble Lords opposite can agree that migration into this country needs to be controlled. The problem is that it is insufficiently controlled. The Government remain attached to their target of controlling migration down to levels of the tens of thousands that we had at the beginning of this century.

It is not clear to me how the noble Lord gets the idea that the Government are in “wholesale retreat”. Let me give him an example of the way in which the Government are most certainly not in wholesale retreat. In the Statement, it was announced that we were closing the applications for the limit on tier 1 general. This is because the limit of 5,100 has already been reached. Had we gone on at the same rate, we would have had a higher level of migration under that tier; it would probably be roughly double what it was last year. We do not consider that an acceptable rate of migration, and we have therefore closed that category. So it is not at all clear to me that we are in “wholesale retreat”.

Of course, we have yet to see the statement and the judgment in writing. It would be unwise of me to go too far until we have seen that. What seems to be clear is that the court was critical of the decision to put the cap limit into the guidance, rather than into the rules. I am not aware that there are further problems. Did the Home Office take legal advice on the matter? Yes, it did. Are the Government going to publish that legal advice? No, the previous Government did not do so, and we are not going to do so either.

My Lords, I express two declarations of interest. My first is as the chairman of the Institute of Cancer Research. I made a speech in your Lordships’ House some weeks ago expressing my severe misgivings about aspects of the Government’s policy, in which I said that that policy, as it stands at present, is preventing eminent international scientific researchers from entering this country. That is clearly an unintended consequence—yet another example of some of the unintended consequences that have streamed from Whitehall during the past few weeks.

My second declaration of interest is as a former business manager in the other House and as a member of the Legislation Committee for seven years. The notion that this is a technical oversight is not true; it is a kindergarten error. I cannot recall in my time on the Legislation Committee, or as a business manager in the other place, anyone overlooking the parliamentary procedure to which my noble friend refers.

Some weeks ago I had a meeting with the Minister of State at the Home Office in which I set out my views on the unintended consequences of his actions, and he promised to write to me. I have still not heard back from him—perhaps this is an intended consequence of our meeting. Will my noble friend please assure me that in future these errors will not be committed by the Home Office and will she give me further reassurance that she will have a word with Ministers in the Home Office to ensure that between now and April, when these matters come into permanent effect, they will look seriously at the misgivings that some of us have expressed about their policy over the past few weeks?

My Lords, I say two things to my noble friend. First, he said that this was a kindergarten error, but we actually took legal advice. On his second, more substantive point, perhaps he missed my honourable friend the Immigration Minister’s announcement that, when the permanent scheme comes into effect, it will not necessarily be precisely the same as the interim structure. We are consulting on that structure and listening to what people have said. One of the changes that have already been announced is that we will create a category for international talent—people whom this country badly needs. I hope that my noble friend’s anxieties on that score are somewhat alleviated by the Government’s willingness to listen to the points that are being made to us.

My Lords, the press reported Friday’s judgment as Parliament having been insufficiently consulted, which seems a reasonable précis of the explanation that the Minister has given. That being the case—and she has told the House that changes to the rules will be laid tomorrow to enable the Government to reinstate the interim limits on a clear basis—will she explain what the procedure will be and what consultation of Parliament there will be?

I would like to try to find a positive in this. During the period in which the cap has applied, whether properly or not, have the Government been able to take any comments or details from employers or indeed employees from particular sectors that will feed into decisions about the permanent limits? When the Minister gave evidence to the Merits of Statutory Instruments Committee earlier this year, she said that the Government would keep the interim limits under constant review to assess whether they were meeting the objectives outlined and, indeed, that they would monitor any unintended consequences.

The judgment that the court has arrived at indicates that we ought to have formulated the rules differently and the consequence of that is that we stand accused of not having consulted Parliament adequately on that point. I might say that that was not done with any intention to obviate our obligations to the legislature; this was laid out before Parliament in good faith. We felt that one of the ways in which it would be helpful to have greater flexibility when putting in the interim arrangements was to have the figure in the guidance so that it would be easy, in the light of the kind of consultation that we wished to conduct, to carry numbers over from one month to the next. I have to say that, in putting the figures into the rules, as no doubt we will now do, there will be greater rigidity in the arrangements that have to be arrived at.

The noble Baroness asked two other questions. One was whether we would consult on the changes to the new rules. Our obligation in this instance is to get ourselves into conformity with the judgment and I hope therefore that there will be no argument about what we do. She also asked whether we had listened to employers from particular sectors. The answer is that we have been consulting extremely widely and in all sectors.

Do the Government intend to consult Parliament now? If so, how are they going to do it? The Minister said that there would be increased rigidity. What did she mean by that?

As I said, my Lords, the object of the Statement tomorrow will be to get us into conformity, as we understand it, with the judgment. Then, when we see the judgment in writing, if we need to make further changes in the light of that, we will certainly do so. It is not clear to me how much clearer I can be on the question of the nature of the rigidity introduced by the cap. There is complex drafting involved in putting a limit in the rules to give us the ability then to change it, which is why the Government decided, in order to retain flexibility, that we would keep the limit in the guidance.

My Lords, does the Minister agree that new controls over migration are of limited value unless there is effective border control over those entering and leaving the country? Does she therefore understand my disappointment that she has apparently decided that the coalition agreement pledge to “reintroduce exit checks” cannot be fulfilled until 2015, which is later than the former Labour Government planned to introduce this change? Given that her Written Answers to me reveal that only some 5 per cent of those departing the UK are currently subject to exit controls, and that there is complacency at the Home Office on the need for urgent action, will she hold urgent discussions with our right honourable friend the Home Secretary, to whom she is responsible for national security, with a view to getting something done?

My Lords, I am not clear quite how relevant the points that my noble friend has just made are to this debate. Most of the people coming in, except for a very small number, are sponsored to this country, so it will not be difficult to know when they are moving—their employers will not be able to have a new person in, in the absence of being able to demonstrate that those who previously had that sponsorship have left.

My Lords, if I understood the Minister correctly, she said that the Government will be involving the other place in the proposed changes to be announced tomorrow. Will there be a similar process whereby this House can be involved with those changes?

My Lords, it is not the intention of the Government that we question but the fact that this has bypassed the scrutiny of Parliament, which was precisely what the judgment was all about. May I ask the Minister about something that is still not clear? She mentioned that a Statement would be made tomorrow. Are we expecting a Statement or are we expecting changes in the rules for the interim cap? Either way, will we have the opportunity in Parliament to debate or at least to comment on the changes to the rules?

My Lords, the Statement will deal with the changes in the rules. Perhaps I should take this opportunity to say that the rules will then change immediately—that is to say, the rule change will be commenced immediately to rectify tier 2. Also, as was contained in the Statement, the Government will be closing tier 1 on 23 December. As a result of these timetable changes, it will not be possible to meet the 21-day convention for laying rules, but we will write to the Merits Committee about that matter.

My Lords, if the object of the Government’s policy is to reduce net migration, is not her noble friend’s question about numbers of people leaving the country extremely relevant and should not that therefore be taken into consideration?

Hundreds of thousands of people leave the country. This is normal travel. Among that number are those who are here on some kind of immigration visa for the purposes of employment. As I said, very few of those who come here to work come without any kind of sponsorship. There is a small category of entrepreneurs and investors who are in that position. Otherwise, people who come here to work have sponsors. Sponsors are not able to replace them. There cannot be a net increase in the migration to this country in the absence of the person who sponsored the employment giving notification of the departure of the employee and the reinstatement of a new person, if they wish it. We can therefore keep control and knowledge of movement of people in this position.

My Lords, the Government are right to recognise the concern that the population at large has on the number of immigrants coming into the United Kingdom. The present cap, however, applies only to non-EU countries—presumably that includes Australia, Canada and New Zealand. There is also increasing concern at the number of immigrants coming from within the European Union, which will increasingly become a political problem in the United Kingdom. Are the Government avoiding that issue simply because they are members of the European Union and can do nothing about it?

My Lords, we are members of the European Union and there are obligations for free movement of labour within the European Union. The noble Lord is right to say that we honour our obligations.

My Lords, would my noble friend suggest that somebody in the Home Office should advertise on the internet on one of the job vacancy websites such as Gumtree and see who answers the advertisement? She would find, as I have found, that a large number of the applications would come from people who have student visas—I am glad to see the noble and learned Baroness over there, because she has had experience of getting caught on this, as I very nearly did—and that many of them, when one replies and asks for their immigration status, disappear very smartly. There are masses of people coming into this country seeking work illegally, so does the Minister not agree that the suggestion of my noble friend of having exit checks would be one way of finding out whether those who are admitted, for example as students, ever leave the country at all? Also, surely she agrees that it would be extremely foolish for the Government to set the precedent of publishing, as has been requested, the legal advice given to Ministers in confidence. That would not be the way of ensuring that Ministers receive blunt, honest and open legal advice in future.

On my noble friend’s last point, the Government are clear that we are not going to publish the legal advice that we get, for precisely the reason that he has stated. Such advice needs to be given in confidence by our advisers in the knowledge that it will not subsequently be made public.

On my noble friend’s other points, I entirely agree that there are a number of people who try to take up work illegally in this country. It is precisely that practice that the Government want to end. This is why we are introducing refinements of the controls that are already in place and making the qualifying criteria for ability to work in this country tougher. The object of the exercise is undoubtedly to ensure that those who get the right to work here are legally here under the qualifications that we are setting. He is also right to say that a number of people apply under categories of so-called skilled labour when they are clearly unskilled. That is a practice that we also intend to bring to an end.

Lastly, on the point of external immigration checks, the Government are aware of the concern on this issue and they are, indeed, going to bring in these exit checks. There are problems related to the contract which the previous Government negotiated and which we have had to end. That means that we have to find other ways of bringing in that exit check, but we will do so as early as we are able to. I have given my noble friend who asked the question earlier an estimate of when we are going to be able to do this. If we could do it earlier, we certainly would.

My Lords, could the noble Baroness help me? Did I hear right? The consultation with Parliament is to be by means of a Statement in the other House. That Statement is to be a declaration rather than consultation with that House. We do not know yet whether it will be taken in this House and, if it is taken in this House, we do not know what consultation there will be in this House. In any case, it is going to happen tomorrow and the Government are proposing to renounce—if that is the right word—the 21-day rule. Is that really the position that the Government are taking in order to satisfy the Court of Appeal? If it is, the Court of Appeal may still be interested.

My Lords, I think that the Court of Appeal would expect the Government to rectify their position as soon as they are able to. As for the noble Lord’s other point, as I have said, that is a matter for the usual channels.

My Lords, with permission, may I come to the assistance of my noble friend? Unless I am very much mistaken, the answer to the question posed by the noble Lord, Lord Richard, is, “Yes, they have to”. If they did not do so, there would be difficult consequences for the Government.

My Lords, I cannot answer that question immediately, but I believe that immigration is a federal matter.

The Government of Scotland have expressed a view to the Government of the United Kingdom concerning this. It is a matter on which they have expressed a different view from that of the Government of the United Kingdom. Have the Government of the United Kingdom not had some discussions with them in relation to it?

As I said, I am not entirely able to answer that question. Perhaps I may add one point for the information of the House. The Statement tomorrow will be a Written Ministerial Statement and it will be open to your Lordships’ House to pray against this matter if it should wish to.