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Mr. O'Brien: With great respect, the hon. Gentleman is seeking to add a level of complication--doubtless for the good reason of informing the public--to the proceedings, which might end up confusing more people. I shall try to be as straightforward as I can in my explanation of how the procedure will work, but I do not think much will be achieved by trying to refer to two different clause numbers each time I discuss a clause.

New clause 1 will allow people to remain in the United Kingdom until their appeal is decided, as I have said. Overstayers who apply for their status to be regularised will not be considered under any special criteria. In each case, their particular circumstances will be taken into account under the criteria set out in the immigration rules when deciding whether or not deportation is appropriate.

We shall ensure that the scheme is well publicised. The period for applying will be at least three months--we are considering the time limit--and clause 7 will not come into force until it is over. I believe that that was clause 6 in the old Bill. The details of how to apply will be set out in regulations.

We appreciate that the scheme does not go as far as some would like--some people asked us to retain the right of appeal indefinitely--but we are not prepared to allow current overstayers to retain access to lengthy deportation procedures in perpetuity. That would be both undesirable and impractical.

Amendment No. 28 is contingent on the regularisation arrangements provided for in the new clause. The former protection from removal provided by the original subsection (2) is no longer necessary. The effect of clause 3, which was introduced in Committee, and of paragraph 17 of schedule 4 is that, where someone makes an in-time application for further leave, the leave is treated as continuing while the application is being considered and while any appeal is pending under either clause 47 or clause 55(2). The person concerned is no longer an overstayer. Consequently, he is no longer liable to removal as such until the leave application is decided.

However, anyone who applies for leave to remain under the arrangements envisaged by new clause 1 is already an overstayer. If his application has not been resolved by the time clause 7 comes into force, he would be liable to removal under the new administrative removal procedures. Amendment No. 28 makes it clear that the new removal procedure will not apply to someone in that situation. If the application is granted, the person concerned will be granted leave to remain. If it is refused, they will have the same right of appeal during that period against any decision to make a deportation order as they do at present.

Amendment No. 29 deletes subsection (5) of clause 7. That power was originally included in case it was required. However, I can envisage no circumstances in which it might be necessary and, having regard to the concerns that were expressed by the Opposition--by

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the hon. Member for Hertsmere about the number of powers in the Bill to make subordinate legislation--we have decided to forgo that one.

Clause 149 gives details of how the various orders and regulations are to be managed. Amendment No. 91 adds a new subsection (3A) to that clause, specifying that certain regulations are to be made subject to the affirmative resolution procedure. Those are regulations concerning the regularisation period for the current overstayers and regulations extending the clause 60 one-stop procedure. We listened to the representations made in Committee by several hon. Members about the way in which we should do that, and we accept that the affirmative procedure is appropriate for those regulations, in line with the orders specified in subsection (3) of clause 149.

10.15 pm

Amendment No. 92 is consequential on amendment No. 91. It simply adds a reference in the regulations that are to be subject to the affirmative resolution procedure to the list of exceptions in subsection (4), which otherwise requires all secondary legislation to go through the negative procedure.

Amendment No. 96 relates to new clause 1 and amendment No. 139. The new clause gives the Secretary of State power to make a regulation specifying when the regularisation period for overstayers ends. Subsection (3) of the new clause states that clause 7--under which overstayers are to be removed without deportation--and paragraph 6 of schedule 13 come into force on the following day. Amendment No. 96 refers back to new clause 1 in the commencement clause, listing it as a special case. For example, under clause 153(3), most parts of the Bill will come into force on the day that the Secretary of State appoints, but clause 7 will come into effect the day after the specified final day of the regularisation period.

Amendment No. 139 is a transitional arrangement. It retains the appropriate deportation appeal provisions of the Immigration Acts of 1971 and 1988 for overstayers who have made a valid but unsuccessful application under the regularisation scheme and who are to be deported under the old provisions, rather than removed under the new ones.

Mr. Richard Allan (Sheffield, Hallam): Will the Minister clarify a point arising from when clause 7 comes into force? That clause applies also to those who have observed the conditions attached to their leave to remain, as well as to those who are simply overstayers. Will those in the former category retain their appeal rights during the regularisation period?

Mr. O'Brien: Our intention is that clause 7 will come into force all at once after the regularisation period has ended. We listened to the representations of various hon. Members in Standing Committee, who felt that we had to examine the issue very carefully, and the aim is to bring in the clause at a date later than originally planned. We cannot go as far as some hon. Members wanted, but we believe that this is a sensible way forward.

Mr. Clappison: It would be less than gracious not to respond to the Minister's opening remarks. I am grateful

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that he has recognised that our opposition to the Bill has always been constructive and well meaning. I am just a little surprised, given what the Minister has said, that the Government have decided to guillotine debate and to keep the discussion of subsequent provisions as short as possible.

The Minister claimed to have listened to outside groups and to the evidence presented to the Special Standing Committee. However, had he tried to take on board all the criticisms of the Bill in that Committee, we would be here for a very long time. Perhaps that is why the Minister's colleagues want to guillotine debate.

New clause 1 follows on from matters that we have debated already with regard to overstayers' rights of appeal, but new clauses 2, 3 and 5 contain very controversial proposals that have not been foreshadowed in debate in any way. They were not part of the Government's original proposals for the Bill, were tabled at a very late stage and then were made subject to the guillotine procedure. That is unsatisfactory.

New clause 1 appears to be an addition to what the Government have proposed already by way of curtailment of overstayers' rights of appeal. In Committee, we did not oppose the proposals for change in those rights of appeal, nor the proposed change of regime for overstayers from deportation to removal. That curtails the rights of appeal, especially for people who have overstayed by more than seven years.

We take a serious view of those who overstay. People who exceed their permission to remain are flouting the law and obtaining benefits not available to those who follow the rules and who lawfully leave when they are supposed to do so. Overstaying is a serious matter, but if people have been here for a certain period, a balance must be struck in deciding what to take into account before they are expelled or deported. We must consider the need to remove them from the country against the need to take into account compassionate circumstances that may have arisen because of their presence in the UK for such a long time.

The previous Government set that balance at seven years. When someone had overstayed by more than that, compassionate circumstances could be considered as a ground of appeal. The present Government have changed the balance. Once the regularisation period has elapsed, there will be no right of appeal on compassionate grounds for overstayers who have been here for more than seven years. They will be unable to prosecute any right of appeal in the UK, which makes a very great difference. In taking that view, the Government have gone further than the previous Government. We did not oppose that change in Committee, but the Government have since bolted on a regularisation procedure as a means of meeting concerns expressed by outside organisations that gave evidence.

Ms Diane Abbott (Hackney, North and Stoke Newington): It is true that the hon. Gentleman and his party did not oppose that change in Committee, but some of the Minister's Back-Bench colleagues did oppose it. Many people who overstay are settled members of the communities in which they live. They may have children at school, and the proposals will cause great misery and unhappiness.

Mr. Clappison: The hon. Lady's comments fairly reflect what was said in Committee. We went into

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this matter--which, as the Minister said, is extremely sensitive--in some detail. It would not preserve the harmony that unexpectedly broke out at the beginning of the Minister's speech if I were gently to remind him of what the Labour party said about these matters when in opposition.

We have a number of questions about the regularisation period. The Minister has given a brief account of how it will work, and we have before us the bald statements in new clause 1. We wish to clarify matters further. Can the Minister confirm that the criteria to be taken into account in evaluating the cases of people who have overstayed are the same as those currently used in respect of the rights of appeal under the present system, which deals with them by way of deportation? For people who have been here for fewer than seven years, will the new regime mean that their rights to appeal will be judged against the points of law and other matters currently taken into account in their cases? For those who have been here longer than seven years, will compassionate circumstances be taken into account?

We want to know that there has been no relaxation in the current framework of law. It would be a new matter entirely if the Government intended, by way of regularisation, to relax the law in any way. We should also like to know how long the regularisation period will last. Will he tell us a little more about subsection (4), which deals with publicity on the effects of the clause?

We are not opposing what is being done. It may concern those who originally expressed the sort of fears that the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) mentioned. She may know, as will other hon. Members, that many people who fall into the category of overstayers and who stay here for a long time simply put their heads down and do not respond to anything and the compassionate circumstances build up. The regularisation period will come to an end at some stage--the Minister will probably tell us when--and when it has ended those people will face administrative removal even if they have been here for more than seven years, with the rights of appeal that that entails. They will simply be removed from the country and they will have to prosecute any rights of appeal in the country to which they are removed. That is the regime that is to be put in place.

We look to the Minister for answers to my questions. It is interesting to set his contribution this evening against what he told us in Committee when these matters were being discussed. The hon. Gentleman tells us that he has been prepared to listen, but in Committee the Government assured us that the rationale behind and justification for the changes was a so-called streamlining of the system. Having listened to the Minister this evening, streamlining is not the appropriate description.

We do not oppose new clause 1, but we need a number of answers to our questions.


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