Examination of witnesses (Questions 1
- 19)
TUESDAY 27 JANUARY 1998
BARONESS SYMONS
OF VERNHAM
DEAN, MR
EDWARD CLAY
and MR RICHARD
WHITE
Chairman
1. Baroness Symons, Mr Clay and Mr White,
welcome to the first formal evidence session of the Entry Clearance
Sub-Committee of the Foreign Affairs Committee. As you are aware,
the main Committee has appointed a Sub-Committee to look into
the problems in entry clearance procedures with particular reference
to Islamabad and New Delhi. We welcome you to this afternoon's
session and thank you for the memorandum that you have submitted.
We would like to proceed by asking some general questions in relation
to entry clearance procedures, to be followed by a few questions
on Islamabad and New Delhi. Obviously if there are any sensitive
areas which arise within those questions which you would prefer
to answer in closed session, I am sure the Sub-Committee would
be quite happy to accommodate that if you would indicate accordingly.
First of all, let me ask you, in the memorandum you set out in
paragraph 5 the main elements of the UK's immigration policy and
I would like to ask to what extent it does differ from the previous
administration. What changes of substance have been introduced
to the immigration rules beyond the abolition of the primary purpose
rule?
(Baroness Symons of Vernham Dean) Chairman, thank
you for your welcome. May I, before I answer your question, say
that I am on a three line whip in the House of Lords, so if I
do have to depart, I hope the Sub-Committee will be kind enough
to be understanding on that point. The points of substance which
are different in the policy between ourselves and the previous
administration: the very obvious one is that of the abolition
of primary purpose, as you rightly identify. The other point of
substance is a recognition of the relationships of lifelong partners,
either same sex or opposite sex partners, and we can come back
to that in a moment or two if it would help. In addition, as our
manifesto made clear, it is the Government's intention to introduce
an appeals system for those people who are refused visas for visits
to this country. That is currently under discussion and the policy
for that lies with my colleagues in the Home Office, although
naturally they have consulted us on that point. There is, of course,
the new Government's commitment to a firm, fast and fair immigration
policy as has been articulated by the Home Secretary. It may help,
Chairman, if I point out that the Home Secretary has now prepared
a new statement of policy. It has not yet been issued but if it
would help the Sub-Committee I have some copies here which you
may find of some value. The new statement of policy reflects the
Government's commitment to that immigration policy which is firm,
fast and fair, and the text reflects the Government's wish that
genuine visitors and students who wish to come to the UK should
be welcomed and that family life be supported by admitting the
spouses and minor dependent children of those already settled
in the UK. So for the first time there is reference to the entry
clearance operation at posts overseas in this policy statement
that the Home Secretary has prepared. At the same time there is
also recognition of the need to take action against those who
abuse our immigration laws, so the text we think is different
in tone and in substance to that of the previous Government. The
Home Secretary prepared the text in order to provide a broad policy
background against which individual policy changes can be set.
As I have said, Chairman, we are very happy to give you an advanced
text, although of course the new policy statement has not yet
been formally promulgated and the Home Secretary will be announcing
it himself in due course, and I would not wish to pre-empt that
announcement. Chairman, there have been no changes of substance
to the rules, apart from the abolition of primary purpose rule,
which as you mentioned has already taken place, it took place
on 5th June. The Home Secretary announced in October, as I said,
he was providing a concession for those who wished to bring in
their unmarried partners providing certain conditions were met
as regards those unmarried partners of either gender. Those conditions
are that the unmarried partners are legally unable to marry for
whatever reason, that their relationship has subsisted for four
years, that they intend to remain in a relationship, that is that
the relationship should be regarded as a lifelong commitment,
and that the usual rules as to accommodation and maintenance are
fulfilled.
2. Thank you for that. I am sure the Committee
would like to see copies of the new statement and we will obviously
honour any embargo which is placed upon it. That brings me on
to the next question which relates to the best practice guide
which is issued by the Migration and Visa Department on procedures
to be adopted in entry clearance stations. We would like to ask
what account does that document take of cultural considerations
and would it be possible for the Sub-Committee to see a copy of
that document?
(Baroness Symons of Vernham Dean) Chairman, unlike
the diplomatic services procedure, which I think you will find
in the House of Commons, the best practice is largely an internal
management guide. It is essentially advice for the entrance clearance
managers on how to run their entry clearance section. It covers
a wide variety of issues—operational practice, standards
of service, training, the sort of management checks they should
be carrying out, things like accounting for the visa fees. It
covers standards of service and cultural considerations as well.
On this last point on cultural considerations, training is also
given to the ECOs when they arrive in post, the cultural considerations
which would be of particular importance in the post to which they
had been sent, so that is largely a training issue that happens
at post although the importance of cultural awareness is something
that is stressed to them in advance of their going out to their
post.
Ms Abbott
3. I am grateful to the Baroness for coming
before us this afternoon. As she is aware, I and other Members
of Parliament with large ethnic minority communities are very
unhappy with what has been going on in relation to entry clearance
in Islamabad and other places. We deal with a lot of problems
arising from the process and there are three specific issues—the
length of time it takes to get replies, the content of those replies,
and finally the very real unhappiness and misery caused by these
decisions. The ethnic minority communities, the Asian communities
and other communities, set great store by family events like weddings,
funerals and christenings, and all of us with these kind of communities
virtually every week have to deal with somebody who has been trying
to get a relative in for a family event and has been turned down,
they think unfairly, and of course there is no right of appeal.
This is becoming a big problem. I realise you are a member of
the House of Lords and do not deal with this on a day-to-day basis
but it is important to stress the unhappiness these visa decisions
are causing in our ethnic minority communities. The Government
talks about the importance of the family, but what these visa
decisions are doing is keeping families apart from occasions which
are very important for these communities. The question I wanted
to ask is really quite specific: it is not clear, and maybe I
have not concentrated enough in the past, whether you believe
you actually have the power to review these decisions. Some of
my colleagues are wondering that all they are getting when they
write to ministers about these decisions is a mere repetition
of the original reasoning and that you do not believe you have
the power to review these decisions. If you do not have the power
to review these decisions, it makes no sense MPs writing to ministers
about these decisions.
(Baroness Symons of Vernham Dean) I have the power
to review decisions within the immigration rules and the delegation
of authority that the FCO holds. You made a lot of points there
and I would like to deal with the points that you made, if I may.
As you rightly say, I am a Member of the House of Lords. I do
not think that in any way insulates me from the very real level
of anxiety and worry that MPs have on this and, as you know, I
have not only made myself available to see all Members of the
House of Commons who have constituents in these difficulties but
I have also tried to hold a number of seminars in order to discuss
the difficulties with MPs. The importance that those MPs who have
substantial immigrant populations attach to those issues is of
great concern to me. You mentioned three areas in particular which
have caused real difficulties.
4. Before you come to that, the point I
was trying to convey to you was that until you are faced week
after week in a church or constituency office with the unhappy
people who cannot get their uncle, aunty or granny in, and unless
you are faced with the actual people suffering, perhaps the importance
of the issue does not come home. The real point I want an answer
to—and this is the crux of it otherwise hundreds of MPs
are wasting their time writing letters to you—is do you
have the power to review decisions? That is the point I want you
to answer.
(Baroness Symons of Vernham Dean) The power within
the rules. I do not have the power to say, "This is a case
where I think there are overwhelming compassionate grounds and
therefore outside the rules I am taking this decision." I
cannot do that because the rules are the property of the Home
Office and of the Home Secretary.
5. You cannot make compassionate decisions
outside the rules?
(Baroness Symons of Vernham Dean) Sometimes. It
depends whether the compassionate decision would fall within the
rules and whether it has been a question of an ECO looking at
a case on the basis of an individual judgement which he or she
has made, in which case if it looks like a poor judgement that
has been made, a subjective judgement, then there is the power
of review.
6. This is the heart of the matter for Members
of Parliament. We are accustomed to writing to Home Office Ministers
about immigration cases and asking them to take compassionate
decisions outside the rules. They do not always do as we ask but
they do so on occasions. It is routine for Home Office Ministers
on immigration matters to take decisions on compassionate grounds
outside the rules. What I am asking you is do you feel you have
the same power?
(Baroness Symons of Vernham Dean) Not outside
the rules, I do not. It is a perfectly right and reasonable and
proper question and, indeed, it is one I found myself in some
difficulty over when I first took up my job in the Government
about what the real powers that I had were and the real powers
were to review but within the rules. The power to act outside
the rules lies with the Home Office Ministers. But the reason
that the Foreign Office is written to is, of course, very often
because people are questioning the decisions that have been taken
within the rules, the judgments that have been made within the
rules and, indeed, sometimes they are not even questioning the
judgements, they are asking for the explanations behind those
judgements. So it might not be that they are directly challenging
the judgements made by an ECO and endorsed by an entry clearance
manager; they may be asking for an explanation over what has happened.
Ms Abbott: Baroness
Symons, is it possible either to tell me now or write to me and
say of the amount of correspondence you get from MPs about these
decisions in what proportion of cases are you able to reverse
a decision inside the rules? In other words, what difference does
it make that an MP has written to you?
Chairman
7. Can I follow that up. Have you actually
exercised that power?
(Baroness Symons of Vernham Dean) Yes I have.
There are two ways in which this may happen, Chairman. When the
cases are received in the Correspondence Unit, which of course
is the part of the office which largely deals with these, if there
are difficulties over the cases recognised by officials working
in the Correspondence Unit they are passed over to the Policy
Unit which then can review the decisions that have been taken
in the post. I also see a certain number of those letters and
I reply personally to quite a large number of those letters and
I myself reasonably often send them back and say that I am dissatisfied
with the decision that has been taken and request either fuller
and better particulars of what has actually happened or say, prima
facie, on the basis of the evidence I have had that I am minded
to say within the rules I think that the ECO's decision has not
been right and then they are referred back.
Ms Abbott
8. We need to get onto the specifics of
Islamabad and Delhi but is it possible to do us a note on what
your powers are because this is something of much concern amongst
myself and my colleagues. Also, is it possible for you to quantify,
I do not know what the most practical date or period is, or to
give us some sample to show in what percentage of times you actually
exercise your powers because that is the heart of it. First of
all, you asserted that you are limited in your powers to change
the decisions in cases and then you told me that you have exercised
those powers——
(Baroness Symons of Vernham Dean) ——
Within the rules.
9. I am speaking for dozens of Members of
Parliament, it is not just me, and what I want to know is how
many times in practice have you exercised those powers because
colleagues have the feeling that you are 99 per cent of the time
rubber-stamping ECO decisions?
(Baroness Symons of Vernham Dean) Can I make a
further point though that is important. Quite often when MPs make
representations matters are brought to light about a particular
application that had not been clear at the time that the application
was made. Very often when I have spoken to MPs who come to see
me about the applications that have been refused, they are able
to bring further evidence about an individual who may wish to
come to this country who has either been refused settlement, who
will, of course, have gone through an appeals procedure, or been
refused for a visit purpose and quite often then the MP is able
to say, "I don't think the following facts have been brought
into play." That very often is a help. May I say, Chairman,
that I am not sure, frankly, how feasible what Ms Abbott is asking
me to do is. If it is feasible I will do my best.
10. A note on your powers.
(Baroness Symons of Vernham Dean) I can do that.[1]
11. Which is quite important and also some
figures to prove that you are actually using those powers.
(Baroness Symons of Vernham Dean) On the second
point, as I say, I am not sure that we can divide it up in quite
the way that your question implies that we do, but I will certainly
see what figures there are on those issues——
12. You do accept if it turns out you are
not using your powers very much then the question for us as legislators,
not necessarily in this Committee, but the question for MPs is
that maybe the legal framework has to be changed?
(Baroness Symons of Vernham Dean) As I said to
you, using the powers is not necessarily turning over the decision.
Using the powers may also be calling for additional evidence,
seeing MPs, discussing it further and getting to the bottom of
why something happened so the accountability of what I do is not
just in the turning over of the decisions, the accountability
of what I do is actually explaining why what has been done has
been done or suggesting that it should have been done differently,
which I assure the Sub-Committee I do.
Chairman
13. First of all, would you welcome the
power to be able to overturn an ECO's decision?
(Baroness Symons of Vernham Dean) Outside the
rules?
14. Outside the rules?
(Baroness Symons of Vernham Dean) Often I think
I would. Often I am faced with cases where I think that there
is a clear compassionate view to be taken but I cannot do that
because it is outside the rules. Whilst I may say it would be
nice for me to have these powers I must also have regard for my
colleagues in the Home Office who are guardians of the rules and
I do not think unless we are going to say we have got to turn
this whole machine on its head—you may decide that that
is what you feel at the end of your investigation—I think
as things stand at the moment the Home Office would find that
rather difficult in terms of their responsibility for immigration
because it is their Ministers who are accountable for the rules,
so having a Minister outside the Home Office doing that would
actually make life extremely difficult in terms of parliamentary
accountability. Chairman, I did not answer the points Ms Abbott
made about delays and about refusals.
15. If you would like to say a few words
on the remaining issues that Ms Abbott raised.
(Baroness Symons of Vernham Dean) Ms Abbott made
the point about the concern that there is over the time it has
taken to get replies and I have, as Ms Abbott knows, an enormous
amount of sympathy and concern about this myself. It is true that
over the course of last summer we experienced very particular
difficulties. Chairman, there are a number of things I would like
to say to the Committee about why this happened. I think most
MPs would say that their postbags from constituents on these cases
rose very sharply after the election. The reasons for that obviously
one can speculate about, but I think of the MPs to whom I have
spoken, many of them think one of the reasons was that many people,
who had members of their family or friends they wanted to see
in this country, advised their family and friends who had been
refused under the previous administration to, if you like, try
their luck again. Therefore MPs themselves are receiving quite
a lot of letters from constituents about entry visa cases. In
turn, of course, the MPs themselves wrote much more to the Foreign
Office. Just before the election the figure for correspondence
received was about 550 a month, we are now running at just over
1,000 a month, and at the height of the enquiries last summer
we had about 1,300 a month. So there was a huge influx of correspondence.
At the same time we were actually quite short of people in the
correspondence unit. I did not think that the number of staff
on the complement, that is on the establishment, was sufficient.
There were only nine permanent staff in the correspondence unit
at that time, actually on the establishment, and actually there
were only six or seven people in post. So what was happening was
a huge influx of correspondence and not enough people, either
on the complement or indeed staff in post, to deal with it. Chairman,
we attacked this I think pretty vigorously. We are now up to 14
permanent staff in the correspondence unit and a further three
temporary staff. So I hope by really putting some beef into the
correspondence unit we have tackled that issue. In addition, there
were pretty dreadful problems over information technology and
its use. We have tried to bring forward the system of information
technology that we are using. We are going to bring in the new
suspect index list which will be running in the posts towards
the end of this month, and there will be a new system across all
posts which started rolling out at the end of 1997 and we hope
it will continue throughout this year, and that is called Firecrest.
In that there is particular software to deal with immigration
issues. There were very particular problems, of course, associated
with Islamabad but I will leave those on one side because I am
sure you will want to talk about Islamabad separately. So there
were a number of issues coming together and we have tried very
hard, and I think with some success, to address the basic framework
within which this has been working. Ms Abbott raises the question
about the content of replies. I have been concerned that the wording
of some of the refusals has not been, I do not think, of the standard
which I would have thought we should expect. That is not to say
always that the actual decision has been wrong, but the way in
which that decision has been expressed I think at times has been—well,
if I say "infelicitous" that is a polite way of putting
it. I have been concerned about the way in which some of the replies
have been worded. That now is a matter that is being looked at
very carefully in the correspondence unit for quality control
purposes when the ECO responses come in. Of course, people are
always going to be unhappy when the decision on an application
is not what they want. I am afraid there are always going to be
people who feel that the decision has not been fair, for whatever
reason, and that is in the nature of what we are doing here. It
is, after all, one of the means by which we do make sure that
the rules on immigration into this country are properly enforced.
It is a difficult matter for many people but it does have to be
done and I am afraid we are always going to have a certain number
of people who approach Ms Abbott and other MPs who feel those
decisions have been wrong.
Ms Abbott
16. You do appreciate that because there
is no appeal against these decisions, the quality of the decision-making
is supremely important?
(Baroness Symons of Vernham Dean) I absolutely
agree with what you say. Mercifully, we are in a position where
the Government has already made a commitment on this point; the
commitment was made in the manifesto that there would be a right
of appeal. As I said earlier on, the Home Office, who are the
lead department in trying to get the legislative slot on legislation
to institute a right of appeal, and the Foreign Office and also
the Lord Chancellor's Department, who obviously have a very considerable
locus in this because they would be providing those who
would preside over appeal tribunals, are all in consultation at
the moment. I very much hope that we will get a legislative slot
but, of course, as you know we have a very full legislative programme
and that decision will be taken at Secretary of State level.
Mr Anderson
17. You will supply the best practice guide
to the Committee?
(Baroness Symons of Vernham Dean) Yes, I am sure
we can supply the best practice guide to the Committee.
18. Good. The Home Secretary is able to
exercise a discretion outside the relevant paragraphs of the immigration
rules, you are not able to do so, therefore in a case where compassion
is sought it is wrong to write to you?
(Baroness Symons of Vernham Dean) Well, it depends
whether the compassion is exercisable within the rules. Sometimes
it may be. If the compassion falls outside the rules then that
is not the case. I had a case the other day—I will not go
into the details—broadly about adoption rules which are
clear under the Home Office guidelines, and when I get sent cases
like that I often refer them directly on to my counterpart in
the Home Office, Mike O'Brien. We have talked about this because
obviously it is not always clear when MPs write on cases, they
do not always know whether it is more appropriate to the Home
Office or to the Foreign Office. Obviously where it is more appropriate
to the Home Office, we pass them on, if they are cases which have
been referred to me and where I think there is a strong compassionate
case I have in the past, and do, write to Mr O'Brien about them.
19. So you will supply us hopefully with
some examples, leaving out the names and post perhaps, where you
have thought it appropriate to exercise your discretion?
(Baroness Symons of Vernham Dean) Yes. As I say,
the discretion I have is exercisable in a number of different
ways. It may be calling for extra information, MPs seeing me who
actually supply extra information, there may be a number of different
things, but I will do my best, as I said to Ms Abbott, to get
you some information on that.[2]
I do not think it is going to be necessarily a sort of statistical
table but it might be helpful to do it by example.
1 See supplementary memorandum, p. 33. Back
2
See supplementary memorandum, p. 32. Back
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