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1.46 pm
The Parliamentary Under-Secretary of State for the Home Department (Mr. Timothy Kirkhope): I listened most carefully to what was said by the hon Member for Bradford, West (Mr. Madden), and I appreciate the reason for his determination to draw the attention of the House to his constituent's case.
The case concerns a decision to refuse entry clearance to the spouse of a person--the husband of the hon. Gentleman's constituent--settled in the United Kingdom. The application was refused because the entry clearance officer was not satisfied, as he must be, that adequate maintenance and accommodation were available to the couple in the United Kingdom without recourse to public funds. As the hon Gentleman said, this is the second time that the applicant has been refused entry clearance because the entry clearance officer was not satisfied that that requirement was met.
Parliament has provided a right of appeal to the independent appellate authorities in such cases. The applicant exercised that right against the earlier refusal, but his appeal was dismissed by an adjudicator in March last year. The applicant then re-applied for entry clearance in June. The application was refused in November.His appeal against that decision will be heard by the appellate authorities as soon as possible. The responsibility for the arrangement of hearings rests with the Lord Chancellor's Department, but I understand that the appeal is likely to be heard towards the middle of this year.
I have taken particular note of what the hon. Gentleman said about the steps that the sponsor has taken to find employment and to repay the mortgage on her home. Although it is impossible not to sympathise with her,the burden of proof as regards satisfying the requirements of the immigration rules in question rests squarely on the applicant. In other words, her husband must show that he and his wife can maintain and accommodate themselves without recourse to public funds. Although I hear what the hon. Gentleman says about that rule, he will know that there are many examples where we require those who come to this country not to be a drain on public funds, of whatever kind. As the hon Gentleman will be aware, the independent appellate authorities, after carefully weighing all the evidence, concluded that the applicant had not discharged that burden.
The hon. Gentleman has presented his case thoroughly, but I am sure that he will not mind if I go over some of the facts that led the entry clearance officer to refuse the latest application, which was made just three months after the appellate authorities dismissed the applicant's appeal. At the time of the appeal hearing, the hon. Gentleman's
constituent was employed by a clothing company, earning £155 a week. There was also an offer of employment to Mr. Hussain in the same company. Moreover, the sponsor's sister had offered third-party support from her own funds.
The adjudicator considered all the facts. He noted that, in addition to working, the sponsor had been claiming family credit. He dismissed a job offer for the applicant as vague and inconclusive. He also dismissed the offer of third-party support as unrealistic, given the circumstances of the person making the offer and also given the fact that none had been paid so far. When the entry clearance officer came to consider the latest application, he found a change of circumstances. The sponsor no longer worked for the clothing company, although she had found alternative employment--but at a salary of just over£2 an hour.
Given that the adjudicator was unhappy with the sponsor's earlier employment, her present rate of pay was clearly equally unsatisfactory, and the entry clearance officer could not be satisfied that she would not have recourse to public funds. The entry clearance officer also considered it reasonable to discount the possibility that the sponsor would gain better-paid employment in a reasonable time, or that her family would provide third-party support.
The entry clearance officer acknowledged that the sponsor had now started making mortgage repayments from her own account, but, as she was probably still in receipt of family credit, he could not be satisfied that the payments were not being made, at least indirectly, from public funds. He concluded that, since the appeal hearing, there had been no improvement in either the maintenance or the accommodation aspect of the case, and he therefore refused the application. I am satisfied that that decision was fully in accordance with the clear requirements of the rules. An appeal has been lodged, and, if there is any further change to the couple's circumstances, it will be thoroughly considered by the appellate authorities.
The hon. Gentleman referred to the hardship that the decision has caused the couple's two children, and suggested that I consider allowing the applicant to come to this country on an exceptional basis outside the rules. I agree that the welfare of children is an extremely important aspect, but it must be borne in mind that someone claiming an important benefit such as admission to this country with a view to settlement should have to demonstrate his eligibility. It is an important principle that, in both the immigration rules and most other functions of government, people must show that they are entitled to the benefit that they are claiming.
The applicant clearly does not qualify for admission, and only in the most exceptional circumstances would it be appropriate to waive the requirements of the rules, which have been approved by Parliament. The compassionate considerations in this case cannot be considered most exceptional, and I would not be applying the rules fairly and consistently--as I must do in order to maintain fair and firm immigration control--if I overruled the conclusions reached by the entry clearance officer and the appellate authorities, and issued entry clearance to the applicant.
The hon. Gentleman criticised the way in which the maintenance and accommodation requirements of the rules operate. I am glad to have the opportunity to put
their operation in context. We are not the first Government to act to prevent the admission of spouses when the parties to the marriage could not maintain themselves without drawing on public funds. As the hon. Gentleman is doubtless aware, the last Labour Government found it necessary to apply a similar requirement. It would be impossible to overestimate the additional burdens that would be placed on the welfare services were we to cease to apply such tests.
The hon. Gentleman suggested that the test discriminates against sponsors who, like his constituent, are making commendable efforts to combine the responsibilities of work with bringing up children. That is not the case. We would not normally object to the settled partner's receiving any assistance to which he or she is entitled in his or her own right; nor, in the short term, would we normally raise any objection to assistance provided by third parties.
The hon. Gentleman also asked for family credit to be discounted when it comes to deciding what constitutes public funds. On 5 February this year, regulations came into force that tightened Department of Social Security procedures to ensure that ineligible persons from abroad were excluded from receiving certain non-contributory benefits, including family credit. Our intention is that those who are in the United Kingdom either illegally or on a temporary basis--including spouses who are admitted for an initial probationary period of 12 months--should not receive benefit intended for those who are settled here and genuinely entitled to it.
Mr. Madden:
Will the Minister give way?
Mr. Kirkhope:
I want to deal with a point that the hon. Gentleman raised earlier, and I have not much time in which to do so.
The curbs are intended not only to strengthen immigration controls, but to save taxpayers' money and greatly reduce the incentive for people to enter the country illegally. The key question, therefore, is whether additional recourse to public funds would be necessary as a result of the applicant's arrival here. The fact that a sponsor may not be claiming public funds at the time of the application is not in itself evidence that the couple have adequate resources to satisfy the requirements of the rules. The couple would need to provide evidence that the foreign partner would not, in the long term, need to claim public funds in his or her own right.
The hon. Gentleman raised the question of the definition of "long term", suggesting that we might have changed it. We have not, but the definition depends very much on the circumstances involved in individual cases. Adjudicators examine such cases and determine what would constitute a long-term or short-term position in those cases, but nothing is defined in the way in which the hon. Gentleman suggested. Certainly, no case law is available to benefit either him or me.
Mr. Madden:
This is an important point. Does the Minister agree that, if Mr. Hussain were allowed to enter the country, he would not be eligible to claim family credit until he had been granted indefinite leave to remain, which would be at least 18 months after his entry?Will the Minister provide adjudicators with guidance on the definition of "long term"? Mr. Molloy was clearly unaware of what the Minister has told us, and I suspect that many other adjudicators are as well.
Mr. Kirkhope:
I cannot discuss Mr. Molloy's views, nor do I wish to; but I can say that adjudicators are well aware of the need to define "long term", and do so on the basis of individual circumstances. That has been the case in this instance as in others.
Practical experience confirms that the tests are not too difficult to pass. The figures for migration from the sub-continent show that entry clearance was granted to 8,610 spouses, whereas 1,160 were refused solely because there was insufficient maintenance and accommodation.
I repeat that the sponsor's position deserves some sympathy, but I cannot believe that either she or her husband was entirely ignorant of the requirements of the immigration rules when they entered into the marriage. As the hon. Gentleman knows, it is my responsibility to maintain a fair and firm policy on immigration control. The majority of spouses applying for entry clearance to join persons settled in the United Kingdom are able to satisfy the requirements of the immigration rules.
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